PEOPLE v. WATKINS

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Defendant appeals as of right his conviction of
first-degree felony murder, MCL 750.316(1)(b); MSA 28.548(1)(b),[1] following a guilty plea to open murder and a degree
hearing pursuant to MCL 750.318; MSA 28.550. Defendant received a
sentence of life imprisonment for the murder conviction and two
years imprisonment for the felony-firearm conviction. On appeal,
defendant raises several assertions of error, including the
argument that the trial court erred when it compelled him to
testify against himself at the degree hearing. We agree with
defendant that the trial court should not have called him as a
witness at the degree hearing, however, we find that the error
was harmless.

I

On January 18, 1998, Allen Russell Stewart was
shot in the back in his mother’s front yard and died the
same day from his gunshot wounds. There were no eyewitnesses to
the shooting, although the next-door neighbor recalled seeing two
men standing by a tree shortly before Allen was shot and stated
that she heard the gunshot. Allen’s mother Charlene Stewart
also heard a loud noise at the time of the shooting and observed
Allen staggering into her kitchen with blood on his head.
Charlene said that after Allen was shot, she was unable to locate
his wallet or several pieces of jewelry that he normally wore. A
police officer who responded to Charlene’s 911 call noticed
that Allen had duct tape on his wrists. After a search of
Allen’s room at his mother’s house, the officer found
what appeared to be drug trafficking paraphernalia and 10.98
grams of crack cocaine with an estimated value of $1,000.

The police subsequently received information
that defendant may have been involved in the shooting. A police
detective traveled to Kentucky where defendant was in jail on an
unrelated charge and interviewed him after defendant waived his Miranda[2]
rights. According to the detective, defendant initially denied
any involvement in the shooting or that he had ever been to
Michigan. During a third interview, defendant allegedly admitted
that he and a friend Ardell Robinson went to the neighborhood to
attend a party and sat on the hood of Allen’s car waiting
for the party to begin. Defendant claimed that Allen pushed him
and his gun went off as he slipped and fell. In a fifth
interview, defendant allegedly told the detective that Robinson
gave him a gun before they arrived in Allen’s neighborhood.
Defendant said that Robinson grabbed Allen, and when Allen broke
away and approached defendant, he pulled his gun and it went off.
The detective claimed that defendant further admitted that he and
Robinson discussed robbing someone.

The prosecution charged defendant with open
murder and felony firearm. At a hearing on November 4, 1999,
defendant pleaded guilty to both charges, and claimed that he
shot Allen after the two fought. During the course of the plea
hearing, the court informed defendant that by pleading guilty he
was waiving his right to a jury trial and the right to remain
silent at that trial. Defendant indicated his understanding of
his rights and the consequences of his plea and waived his rights
on the record.

On November 8, 1999, the court held a degree
hearing pursuant to MCL 750.318; MSA 28.550.[3] At the hearing, the
prosecution presented several witnesses including Charlene
Stewart, the police officer who responded to the scene following
the shooting, and the detective who interviewed defendant. The
prosecution also called a forensic pathologist who testified that
Allen had scrapes on his forehead and face, and died as a result
of the gunshot wound. According to the pathologist, the bullet
entered Allen’s back, traveled down through his body
perforating his aorta, and stopped in his thigh. After the
prosecution and defense rested, the court called defendant as a
witness, and he was questioned both by the court and the
prosecution. Defense counsel did not object to the court calling
defendant as a witness or to defendant’s testimony. During
his testimony, defendant denied robbing Allen and continued to
insist that the shooting occurred as the two fought.

In an oral decision following the degree
hearing, the trial court found that defendant planned to rob
Allen and the shooting could not have happened in the manner
described by defendant. The court then concluded that the killing
constituted felony murder because it occurred during the course
of a robbery.

II

Defendant argues on appeal that the trial
court’s decision to call him as a witness at the degree
hearing and allow the prosecution to cross-examine him violated
his Fifth Amendment right against compelled self-incrimination.
Although this Court has addressed matters involving the degree
hearing procedure embodied in MCL 750.318; MSA 28.550, the
argument raised by defendant appears to be an issue of first
impression.

It is unquestioned that both the United States
and Michigan Constitutions prohibit the government from
compelling a criminal defendant to testify against himself. US
Const, Am V; Const 1963, art 1, sec 17; People v Cheatham,
453 Mich 1, 9; 551 NW2d 355 (1996). This right has been found to
extend beyond the defendant’s conviction and affords
protection against compelled self-incrimination in the sentencing
phase of a criminal proceeding. Estelle v Smith, 451 US
454, 462-463; 101 S Ct 1866; 68 L Ed 2d 359 (1981); People v
Wright, 431 Mich 282, 295; 430 NW2d 133 (1988). "[T]he
availability of the [Fifth Amendment] privilege does not turn
upon the type of proceeding in which its protection is invoked,
but upon the nature of the statement or admission and the
exposure which it invites." Estelle, supra at
462, quoting In re Gault, 387 US 1, 49; 87 S Ct 1428; 18 L
Ed 2d 527 (1967).

However, when a defendant pleads guilty to a
crime, he generally waives the right against compelled
self-incrimination for the purpose of the plea taking procedure. People
v Banks, 51 Mich App 406, 407; 214 NW2d 890 (1974); Boykin
v Alabama, 395 US 238, 243; 89 S Ct 1709; 23 L Ed 2d 274
(1969). In addition, a trial court is required to inform a
defendant that by pleading guilty he is waiving several critical
constitutional rights, including his right to remain silent, and
to ascertain that the defendant understands the waiver. MCR
6.302(B)(3); People v Jaworski, 387 Mich 21, 30; 194 NW2d
868 (1972). The question before this Court here is whether a
criminal defendant who waives his right to remain silent in
connection with a plea of guilty to open murder also waives that
right for the purpose of the degree hearing conducted pursuant to
MCL 750.318; MSA 28.550.

The "open murder" statute, MCL
750.318; MSA 28.550 establishes a procedure for determining the
degree of murder when the information does not charge the
defendant with a specific degree of murder. When a person charged
with murder is convicted by a jury, MCL 750.318; MSA 28.550
requires the jury to "ascertain in their verdict, whether it
be murder of the first or second degree." However, when a
defendant is "convicted by confession," the court must
"proceed by examination of witnesses to determine the degree
of the crime" and "render judgment accordingly." Id;People v Martin, 316 Mich 669, 671-672; 26 NW2d 558
(1947). The statute does not specify whether the defendant
retains any constitutional rights regarding the hearing, but we
have held that the degree hearing following a guilty plea is not
a trial, and a defendant who pleads guilty to open murder is no
longer entitled to have a jury determine the degree of murder. People
v Case, 7 Mich App 217, 225; NW2d (1967); People v Roberts,
211 Mich 187, 194-195; NW2d (1920), overruled on other grounds
447 Mich 436 (1994). It is apparent that certain constitutional
rights, such as the right to be tried by a jury, are waived by
pleading guilty to open murder.

Although there is no authority directly
addressing the issue raised in this case, this Court has
considered similar issues involving the open murder statute. In People
v Pearson, 24 Mich App 270; 180 NW2d 53 (1970), the defendant
pled guilty to open murder, and the trial court conducted a
degree hearing during which the court apparently questioned the
defendant. Relying on Case, supra, this Court held
that a degree hearing is not the equivalent of a trial, and the
trial court did not err by eliciting information from the
defendant. Id. at 272. However, the apparent issue in Pearson
was whether the trial court exceeded its authority by questioning
the defendant instead of deferring to the prosecutor, not whether
the questioning itself was permissible. Id. Further, the Pearson
opinion does not indicate whether the defendant waived his Fifth
Amendment right against self-incrimination during or sometime
before the hearing, nor does it indicate if defendant objected to
his compelled testimony.[4]

This Court further explored the degree hearing
procedure in People v Berry (On Remand), 198 Mich App 123;
497 NW2d 202 (1993). In Berry, defense counsel entered a
plea of guilty to open murder on behalf of the defendant. The
defendant challenged the trial court’s acceptance of the
plea because the court did not directly question him to establish
the existence of the crime and his participation in that crime as
required by People v Barrows, 358 Mich 267, 272; 99 NW2d
347 (1959).[5] The Berry Court found that because the degree
hearing process involves not only a plea, but a testimonial
hearing and fact finding by the trial court, the analysis of a
plea under the open murder statute should be different from that
of a summary plea proceeding. Berry, supra at 126.
We further held that the questioning dictated by Barrows
does not necessarily apply to an open murder proceeding, and that
the court may ascertain the accuracy of the plea through other
evidence or testimony. Berry, supra at 126-127.
Although Berry allows a trial court to avoid direct
questioning of a defendant in the plea portion of an open murder
proceeding, it does not address whether a trial court or a
prosecutor may question a defendant during the degree hearing.[6]

It is apparent that the existing case law of
this jurisdiction provides no clear answer to the question
whether a criminal defendant who pleads guilty to open murder
retains his Fifth Amendment right against compelled
self-incrimination for the purpose of the degree hearing.
However, a recent United States Supreme Court decision addressing
the extent of a waiver of the right against compelled
self-incrimination following a guilty plea lends some guidance on
this issue.

In Mitchell v United States, 526 US 314;
119 S Ct 1307; 143 L Ed 2d 424 (1999), the defendant pleaded
guilty to conspiring to distribute cocaine, but reserved the
right to contest during the sentencing phase of the proceeding
the actual amount of drugs she distributed. The district court
engaged in the plea colloquy required by FR Crim P 11, which
includes the determination that the defendant understood that she
was waiving her right to trial and her right to remain silent at
trial. During sentencing, the defendant did not testify or put
forth evidence to dispute the government’s proofs regarding
the amount of cocaine she distributed. The district court
concluded that defendant waived her right to remain silent
because of her guilty plea, and drew an adverse inference from
her refusal to testify during the sentencing proceeding.

On appeal, the Supreme Court held that the plea
colloquy did not entail a waiver of defendant’s right to
remain silent during sentencing. Mitchell, supra at
322-323.

The purpose of a plea colloquy is to protect
the defendant from an unintelligent or involuntary plea. The
Government would turn this constitutional shield into a
prosecutorial sword by having the defendant relinquish all rights
against compelled self-incrimination upon entry of a guilty plea,
including the right to remain silent at sentencing. There is no
convincing reason why the narrow inquiry at the plea colloquy
should entail such an extensive waiver of the privilege. [Id.
at 322]

The Court found that the purpose of FR Crim P
11 is to inform the defendant what she is losing by her decision
to forgo a trial, not to elicit a waiver of the privilege against
self-incrimination for further proceedings. Id. at 324.
The Court noted that incrimination is not complete once guilt is
determined, and a defendant has a legitimate fear of adverse
consequences from testifying at sentencing. Id. at
325-326. Relying on Estelle, supra, the Court held
that compelling a defendant to testify against his will at a
sentencing hearing clearly contravenes the Fifth Amendment. Mitchell,supra at 326. "The essence of this basic
constitutional principle is ‘the requirement that the State
which proposes to convict and punish an individual produce the
evidence against him by the independent labor of its officers,
not by the simple, cruel expedient of forcing it from his own
lips.’" Id., quoting Estelle, supra
at 462.

In comparing the facts of Mitchell to
this case, it is apparent that defendant’s degree hearing
was very similar to the sentencing proceeding in Mitchell.
Like the defendant in Mitchell, defendant’s
incrimination was not complete once the court accepted his plea
of guilty to open murder and he was subject to further adverse
consequences at the degree hearing. In fact, defendant was in far
greater jeopardy here than the defendant in Mitchell
because his guilty plea did not conclusively determine his level
of culpability for the crime and affected not only his
punishment, but the nature of his conviction. We agree with the Mitchell
court that defendant’s acknowledgment at the guilty plea
hearing that he was waiving his right to trial and to remain
silent at trial should not have operated as a blanket waiver of
his right to remain silent at all further proceedings. Id.
at 322. For these reasons, we hold that a criminal defendant who
pleads guilty to open murder does not waive his right to remain
silent at the hearing conducted pursuant to MCL 750.318; MSA
28.550 to determine the degree of murder. Here, defendant had the
right to refuse to testify at the degree hearing, and the trial
court erred when it compelled defendant to testify against
himself.

III

Although we determined that the trial
court’s decision to call defendant as a witness at the
degree hearing was an error, reversal is not necessarily required
to remedy the error. Errors committed at the trial court,
including certain errors of constitutional magnitude, do not
require reversal where the error is determined to be harmless
after analysis under the plain error rule. See People v
Carines, 460 Mich 750, 761-765; 597 NW2d 130 (1999).

The first step in determining whether an error
is harmless is to determine whether the error was a structural
error or a trial error. People v Duncan, 462 Mich 47, 51;
610 NW2d 551 (2000). Structural errors are defects that affect
the framework of the trial, infect the truth-gathering process,
and deprive the trial of constitutional protections without which
the trial cannot reliably serve its function as a vehicle for
determination of guilt or innocence. US v Pavelko, 992 F2d
32, 35 (1993). A structural error is intrinsically harmful
regardless of the effect on the outcome and denies a defendant
basic protections without which a trial cannot reliably serve as
a vehicle for determining guilt or innocence. Duncan, supra
at 51. By contrast, a trial error is an error in the trial
process occurring in the presentation of the case that can be
quantitatively assessed. Id.; People v Anderson (After
Remand), 446 Mich 392, 405-406; 521 NW2d 538 (1994).

To date, no Michigan court has held whether
compelled self-incrimination is a structural error. Our Supreme
Court recently held in Duncan, supra, that the
failure to properly instruct a jury on the elements of the
charged crime is a structural error. Id. at 52-53.
Structural errors have also been found regarding (1) a complete
denial of counsel, (2) a biased trial judge, (3) racial
discrimination in grand jury selection, (4) denial of
self-representation, (5) denial of a public trial, and (6) a
defective reasonable doubt instruction. Id. Our state
courts and the federal courts have only found structural error in
a limited class of cases and have also held that structural
errors are the exception, not the rule. Duncan, supra
at 51; US v Pearson, 203 F3d 1243, 1261 (2000).

At least one federal court concluded that the
admission at trial of a statement that constituted a violation of
a defendant’s Fifth Amendment rights was a harmless trial
error. In Pavelko, supra, the defendant requested
court-appointed counsel to represent him regarding his trial on a
charge of bank robbery. In order to obtain that counsel, the
defendant had to complete an affidavit listing his financial
resources and appear at a hearing before a magistrate. At trial,
the prosecution sought to prove circumstantially that defendant
made recent purchases with illegally obtained funds, and the
trial court allowed the prosecution to admit the affidavit and
defendant’s testimony at the hearing as proof that the
defendant had no independent, legal source of income.

The Third Circuit Court of Appeals in Pavelko
found that admission of the affidavit and testimony created a
conflict between the defendant’s Fifth Amendment right
against self-incrimination and his Sixth Amendment right to
appointed counsel. Id. at 34. The Pavelko court
then determined that the error was a trial error, not a
structural error, because it touched upon the presentation of the
case, could easily be assessed quantitatively, and did not stem
from the framework or conduct of the trial. Id. at 35. The
court also found that the error was harmless beyond a reasonable
doubt because there was no reasonable probability that the
outcome of the case would have been different if the trial court
had not admitted the affidavit and testimony. Id. at 36.

We find that the circumstances of this case are
analogous to the facts of Pavelko, and that the error in
this case was likewise a trial error, not a structural error.
Defendant’s compelled testimony and the impact of that
testimony on the trial was an error in the presentation of one
particular portion of the case, not a defect in the entire
framework of the case. In addition, unlike clear structural
errors such as deprivation of counsel or bias of the court, this
error was easily quantifiable. The error began when the court
called the defendant to the witness stand and ended when
defendant concluded his testimony. Were we to simply extract the
erroneous testimony from the degree hearing, an examination of
the remainder of the proceeding would expose no fundamental
unfairness in the conduct of the case. It is apparent that the
trial court’s erroneous decision to compel defendant to
testify against himself was not a structural error.

Because the error was not structural, harmless
error analysis applies and the appropriate analysis depends on
whether the error is preserved or forfeited. In this case, it is
clear that defendant did not properly preserve the error at trial
by failing to object to the court’s decision to compel him
to testify. In Carines, supra, our Supreme Court
held that a defendant forfeits his constitutional rights unless
he timely asserts them. Id. at 763. To avoid forfeiture
under the plain error rule, the defendant must show that (1) an
error occurred, (3) the error was clear or obvious, and (3) the
error affected substantial rights. Id. In order to
establish that the error affected his substantial rights,
defendant would have to show that the error affected the outcome
of the proceeding. Id.

In this case, it is apparent that the error did
not affect the outcome of the proceeding. Our review of the
record reveals that the prosecution presented adequate evidence
that, in the absence of defendant’s compelled testimony,
would have been sufficient for the trial court to find beyond a
reasonable doubt that the shooting occurred during the course of
a robbery and, therefore, the shooting constituted felony murder.
Further, the record indicates that defendant’s testimony did
not support the court’s ultimate conclusion that the killing
constituted felony murder. Even when questioned by the
prosecution, defendant consistently maintained that he did not
intend to rob Allen and the shooting was an accident that
resulted from a dispute. It is also apparent from the trial
court’s explanation on the record that the court relied on
other evidence to reach its finding that defendant was guilty of
felony murder. Because it is clear that the error did not affect
the outcome of the proceedings, defendant forfeited the error.

Where a defendant forfeits an error, reversal
of the trial court’s determination would be warranted only
where the error seriously affected the fairness, integrity or
public reputation of the judicial proceeding. Carines, supra
at 763. In this case, we find no evidence that this error
resulted in a proceeding characterized by unfairness or lacking
integrity. The prosecution’s proof of defendant’s
culpability for first-degree felony murder was compelling and was
not diminished by the court’s erroneous decision to call
defendant as a witness.

In conclusion, we agree with defendant that the
trial court erred when it compelled him to testify against
himself at the degree hearing. However, because we find that the
error was harmless, reversal of defendant’s conviction is
not warranted.

IV

Defendant also argues that his trial
counsel’s representation was ineffective because he advised
defendant to plead guilty to open murder. Because defendant
failed to raise this issue in a request for a new trial or a Ginther[7]
hearing, our review is limited to the existing record. People
v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).

To prevail on a claim of ineffective assistance
of counsel, defendant must show that his counsel’s
performance was objectively unreasonable and the representation
was so prejudicial that he was deprived of a fair trial. People
v Pickens, 446 Mich 298, 309; 521 NW2d 797 (1994). To
demonstrate prejudice, the defendant must show that, but for
counsel’s error, there was a reasonable probability that the
result of the proceedings would have been different. People v
Henry, 239 Mich App 140, 146; 607 NW2d 767 (1999). This Court
presumes that counsel’s conduct fell within a wide range of
reasonable professional assistance, and the defendant bears a
heavy burden to overcome this presumption. People v Mitchell,
454 Mich 145, 156; 560 NW2d 600 (1997); People v Rockey,
237 Mich App 74, 76; 601 NW2d 887 (1999).

In this case, defendant argues that his
counsel’s advice to plead guilty to open murder was
unreasonable because by pleading guilty, defendant waived
critical rights and subjected himself to the possibility of being
found guilty of first-degree murder without receiving any benefit
in return. However, in reviewing a claim of ineffective
assistance of counsel in the context of a guilty plea, the key
issue to be determined is whether the defendant tendered the plea
voluntarily and understandingly. People v Thew, 201 Mich
App 78, 89; 506 NW2d 547 (1993). "The question is not
whether a court would, in retrospect, consider counsel’s
advice to be right or wrong, but whether the advice was within
the range of competence demanded of attorneys in criminal
cases." Id. at 89-90.

We find no evidence in the existing record that
defendant did not voluntarily and understandingly plead guilty to
open murder. In fact, the record indicates that defendant was
properly advised of his rights at the plea hearing, and he
indicated that he understood that he waived those rights by
pleading guilty. Defendant also argues that he was never informed
that by pleading guilty he waived an appeal as of right.
Defendant attempts to support this claim by attaching an
affidavit to his brief on appeal, however, this document was not
a part of the lower court record and will not be considered by
this Court. Snider, supra at 423. Further, although
there is no evidence that either the trial court or defense
counsel specifically informed defendant that he would waive his
right to appeal by pleading guilty, because we granted
defendant’s leave to appeal, he is unable to demonstrate
prejudice resulting from this alleged error. Hence, we find no
merit to defendant’s argument that his counsel’s advice
was objectively unreasonable or that, but for counsel’s
alleged ineffective assistance, the outcome would have been
different.

In a related argument, defendant claims that
his guilty plea was not knowing or voluntary because he was not
informed that the plea would result in a waiver of his right to
appeal. For the reasons cited above, we reject this argument and
decline to reverse defendant’s conviction on this basis.

V

Defendant’s final argument is that the
evidence was insufficient to support the trial court’s
conclusion that defendant was guilty of felony murder. In
considering whether the prosecution presented sufficient evidence
to support a conviction, we view the evidence in a light most
favorable to the prosecution to determine whether a rational
trier of fact could find that the elements of the crime were
proven beyond a reasonable doubt. People v Lemmon, 456
Mich 625, 633-634; 576 NW2d 129 (1998); People v Truong (After
Remand), 218 Mich App 325, 337; 553 NW2d 692 (1996).

The elements of first-degree felony murder are
1) the killing of a human being, 2) malice, and 3) the
commission, attempted commission, or assisting in the commission
of one of the felonies enumerated in MCL 750.316(1)(b); MSA
28.548(1)(b). Carines, supra at 768. MCL
750.316(1); MSA 28.548(1) states in pertinent part:

A person who commits any of the following is
guilty of first degree murder and shall be punished by
imprisonment for life:

* * *

(b) Murder committed in the perpetration of, or
attempt to perpetrate, arson, criminal sexual conduct in the
first, second, or third degree, child abuse in the first degree,
a major controlled substance offense, robbery, carjacking,
breaking and entering of a dwelling, home invasion in the first
or second degree, larceny of any kind, extortion, or kidnapping.

In this case, defendant pleaded guilty to
murdering Allen which established the first and second elements
of the crime. Therefore, to prove that defendant committed felony
murder, the prosecution had to present sufficient evidence that
defendant committed the murder during the course of one of the
listed felonies.

Here, the trial court concluded that the
applicable felony was the attempted armed robbery of Allen
Stewart. The elements of armed robbery are (1) an assault and (2)
a felonious taking of property from the victim’s person or
presence (3) while the defendant is armed with a dangerous
weapon. People v Norris, 236 Mich App 411, 414; 600 NW2d
658 (1999). The offense of assault requires proof that the
defendant made either an attempt to commit a battery or an
unlawful act that places another in reasonable apprehension of
receiving an immediate battery. People v Terry, 217 Mich
App 660, 662; 553 NW2d 23 (1996).

Our review of the record leads to the
conclusion that the prosecution presented sufficient evidence
that defendant killed Allen while armed and attempting to rob
him. The detective who investigated the case testified that
defendant admitted that he possessed a gun on the night in
question and he and Robinson discussed robbing someone. Charlene
Stewart and the police officer who investigated the crime scene
stated that Allen’s wallet and his jewelry were missing
after the shooting. In addition, there was evidence that Allen
engaged in drug trafficking, which leads to the reasonable
inference that he was a likely target of a robbery. Viewing these
facts in the light most favorable to the prosecution, we believe
that the trial court could have concluded beyond a reasonable
doubt that defendant robbed Allen, and we find no error in its
determination that defendant was guilty of first-degree felony
murder.

Affirmed.

/s/ Martin M. Doctoroff
/s/ Joel P. Hoekstra
/s/ Jane E. Markey

FOOTNOTES:

[1] Defendant also pleaded guilty to and was convicted of
possession of a firearm during the commission of a felony, MCL
750.227b; MSA 28.424(2). Defendant does not challenge the
felony-firearm conviction in this appeal.

The jury before whom any person
indicted for murder shall be tried shall, if they find
such person guilty thereof, ascertain in their verdict,
whether it be murder of the first or second degree; but,
if such person shall be convicted by confession, the
court shall proceed by examination of witnesses to
determine the degree of the crime, and shall render
judgment accordingly.

[4] It should be noted that the factual and analytical
portions of the Pearson opinion are rather sketchy, making
it difficult, if not impossible, to analogize the facts and
holding of that case to the present case.

[5] This requirement is also contained in MCR 6.302(D)
which states that the court must question the defendant to
establish support for a finding that the defendant is guilty of
the offense to which the defendant is pleading. In addition, MCL
768.35; MSA 28.1058 obligates a trial court, before accepting a
guilty plea, to "become satisfied after such investigation
as he may deem necessary . . . that said plea was made freely,
with full knowledge of the nature of the accusation, and without
undue influence."

[6] The defendant in Berry also petitioned for a
writ of habeas corpus in federal court. Berry v Mintzes,
529 F Supp 1067 (ED Mich, 1981). When the district court denied
his petition, Berry appealed to the United Stated Circuit Court
of Appeals, which affirmed the lower court’s decision. Berry
v Mintzes, 726 F2d 1142 (CA 6, 1984). However, neither of
these cases addresses the key issue presented by defendant in
this appeal.